Exhibit 10.1
SEPARATION AND RELEASE AGREEMENT
This Separation and Release
Agreement (“Agreement”) sets forth the terms of the
agreement between The Bank of the Pacific (“the Bank”)
and Philippe Swaab (“Swaab”) relating to Swaab’s
employment with and separation of employment from the
Bank.
WHEREAS , the Bank and Swaab entered into that certain
Employment Agreement dated December 20, 2005 (the “Employment
Agreement”), a copy of which is attached hereto as Exhibit
A.
WHEREAS , pursuant to the terms and conditions of the
Employment Agreement, in March 2007 Swaab gave notice of his
voluntarily resignation from his employment with the Bank,
effective June 2, 2007.
WHEREAS , the Bank and Swaab disagree as to the relative
rights and responsibilities under the Employment
Agreement.
WHEREAS , Swaab has been awarded stock options by the
Bank (the “Stock Options”) providing Swaab the right to
purchase common stock of the Bank at various different vesting
dates and purchase prices; Swaab has previously exercised his right
to purchase with regard to some of the vested stock options; and
Swaab continues to have some additional remaining vested stock
options and the right to exercise the vested options
post-termination pursuant to the terms and conditions set for in
the individual Grants and the Bank’s Plan.
WHEREAS , in settlement of their disagreement and as
consideration for the promises and covenants contained herein
parties agree as follows.
1.
Effective Date
: The effective date of
Swaab’s voluntary resignation is changed from June 2, 2007 to
April 16, 2007.
2.
Payment to Swaab : Upon execution of this Agreement, the
Bank will pay Swaab a total of $175,250 (the
“Payment”), as follows:
(a) the
sum of $59,646 in wages, less all lawful deductions including
taxes, and which will be reported as income to Swaab on a W-2 form;
and
(b) the
sum of $115,604, in the form of general damages, no part of which
constitutes wages, back pay, front pay, or other remuneration for
services, and which will be reported as income to Swaab on IRS Form
1099.
3.
Method of Payment : On April 17, 2007, the Bank will have
checks in the appropriate amounts ready for pick-up by Swaab at the
Bellingham Branch of the Bank after Swaab has provided the Bank
with an executed Agreement.
4.
Termination of Employment Agreement : The Employment
Agreement is hereby mutually terminated and rescinded and is of no
further force or effect.
5.
No Effect on Stock Options : Nothing in this Agreement will
affect either party’s rights or obligations under the Stock
Options.
6.
Medical Coverage : Swaab and his family’s medical
coverage will continue in full force and effect through May 1, 2007
at no additional cost to Swaab.
7.
Mutual Release of All Claims : This release and waiver shall
apply to claims related to Swaab’s employment with the Bank
or termination of Swaab’s employment with the Bank that the
Bank may have against Swaab, or that Swaab may have against the
Bank and its parents, subsidiaries, affiliates, successors, and
assigns and their current and former officers, directors,
employees, agents, representatives, attorneys, successors and
assigns, and any other entity that may be related to the Bank
through ownership, partnership, or similar arrangement
(collectively referred to as “Bank Releasees”). The
parties release and discharge each other from any and all claims or
charges or suits of whatever nature they have or may have against
any of them, including without limitation, any and all claims,
known or unknown, arising from Swaab’s employment or
termination of employment with the Bank, including, but not limited
to claims under any Federal, State, or Local law, regulation, or
order, or in tort or in contract or otherwise. The parties further
agree that they will not commence any lawsuits with regard to any
claims, known or unknown, arising out of Swaab’s employment
or termination of employment. This release and waiver and the
promise not to sue shall be binding on the Bank and on Swaab,
Swaab’s executors, administrators, heirs, and assigns. This
release and waiver does not apply to any claims that may arise
after this Agreement is executed or for any claim or action to
enforce any term of this Agreement..
8.
Nondisparagement clause : The parties further agree that, in
addition to whatever common law obligations they have, the Bank,
its Board of Directors or Executive Officers, and Swaab will not
say or do anything that portrays the other party in a negative
light or disclose any sensitive information pertaining to the other
party to any other person or source, except as required by
law.
9.
Confidential Agreement . Swaab may discuss the terms of this
Agreement with his spouse, attorney, and/or accountant, provided
that Swaab also informs such person that this Agreement is subject
to a confidentiality provision. Swaab agrees that, except as
required by applicable Federal, State, or Local law, Swaab and his
spouse, attorney,
